On Wednesday afternoon, in the shadow of reports of Justice Stephen Breyer’s forthcoming retirement announcement, the Supreme Court denied an application to postpone the executions of two Oklahoma men. The brief order, with no recorded dissents, cleared the way for Oklahoma to execute one of the men, Donald Grant, at 11 a.m. EST on Thursday morning. The other, Gilbert Postelle, is scheduled to be executed on Feb. 17.
Oklahoma’s lethal-injection protocol has received increased scrutiny in recent years. Grant and Postelle argued that the use of the drug midazolam, the first of three drugs used by the state, is unconstitutional under the Eighth Amendment. The two men asked for executions by firing squad instead, arguing that a firing squad would be less painful than an execution using midazolam. Midazolam is a sedative, not an anesthetic, and is considered ineffective by many scholars and doctors.
In 2014 and 2015, the botched executions of Clayton Lockett and Charles Warner led to a six-year moratorium on capital punishment in Oklahoma. Last year, Oklahoma Attorney General Michael Hinter announced that executions would proceed using a three-drug protocol: midazolam, followed by vecuronium bromide (a paralytic), and then potassium chloride.
The state’s first execution following the moratorium, after the Supreme Court denied John Marion Grant’s request for a stay in October 2021, again had severe problems. John Grant (no relation to Donald Grant) repeatedly vomited and gasped for air during the first and second stages of his execution. In their application to the Supreme Court this week, Donald Grant and Postelle presented John Grant’s vomiting and likely asphyxiation as evidence of “severe pain and extreme suffering” in violation of the Eighth Amendment’s ban on cruel and unusual punishment.
In its response brief, the state urged the justices not to disturb the rulings of two lower courts that concluded Grant and Postelle were not entitled to relief. Those courts held that the state could rely upon midazolam to render the prisoners insensitive to pain. They also ruled that Grant and Postelle had waited too long to select an alternative execution method.
A trial is set for next month on whether Oklahoma’s use of midazolam violates the Eighth Amendment. Grant and Postelle argued that, unless their executions were delayed, they would be “used as human guinea pigs” and “test cases” to generate evidence for the trial.
The court denied Grant and Postelle’s request in an unsigned order without explanation. Justice Neil Gorsuch was recused, likely because he participated in an earlier phase of litigation challenging the execution protocol when he was a judge on the U.S. Court of Appeals for the 10th Circuit.
Grant was convicted of murdering two hotel workers during a 2001 robbery. Postelle was convicted of murdering four people outside a trailer in 2005.
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